NSA ruling fallout hits White House

In legal terms, a federal judge’s decision Monday questioning the constitutionality of the National Security Agency’s massive call-tracking program seems almost certain to have no practical significance.

In political terms, it comes at a critical time for the NSA and President Barack Obama.

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U.S. District Court Judge Richard Leon’s ruling that the NSA’s metadata program appears to violate the Fourth Amendment was issued just three days after a review group established by Obama delivered its report proposing more than 40 changes to the federal government’s surveillance programs.

Obama was initially expected to dig through the reform proposals before Christmas and announce which ones he would adopt. However, the White House now says that process won’t be complete until sometime next month.

The delay gives Leon’s decision time to resonate and gives surveillance skeptics more time to pressure Obama to endorse significant reforms after Edward Snowden’s revelations about NSA surveillance practices.

The ruling also underscores the awkwardness of a president who won office in part by railing against the national security state established by President George W. Bush trying to defend much of that establishment while maintaining his vow to restore civil liberties and bring an end to what seemed like a permanent war on terror.

Leon said his decision would not take effect while it is being appealed, which he said was inevitable. And with at least three other lawsuits related to the metadata program in the works, the issue seems highly likely to be resolved by the Supreme Court. But politically, Leon’s ruling could also create the impression that Obama is less concerned about privacy rights than a conservative judge appointed by Bush.

“There have been hints of diversity of opinion in [the interagency process], with some people in the White House more pro-privacy and others less so,” said Michelle Richardson of the American Civil Liberties Union, which is pressing for an end to bulk data collection and for greater safeguards on surveillance. “This is going to open up a whole new point in the debate … Hopefully, this will lead to more support for meaningful changes,” she said.

Former National Security Agency Director Michael Hayden, a backer of the call-tracking program, also said the new court ruling could shift the balance in favor of more limits on the NSA’s work.

“The arguments of those interested in preserving the validity and legitimacy of arguments about how [Obama] ran could get a little stronger inside government,” Hayden said. “They may administratively change the program.”

Obama has already signaled his plans to impose greater limits on the NSA, but the contours of those changes have only been partially decided, White House officials say.

“I’ll be proposing some self-restraint on the NSA. And … to initiate some reforms that can give people more confidence, ” Obama said earlier this month in an interview with MSNBC.

While Monday’s ruling may shift the internal administration debate in favor of more reforms, there’s no expectation Obama will completely halt the bulk collection of calling data from U.S. carriers. But he might endorse stricter limits on how long the data can be kept or propose other ways of storing the data than having the NSA hold it.

Among the surveillance doubters who might now have more impact: former Clinton White House Chief of Staff John Podesta, who’s set to begin work next month as a counselor to Obama. Podesta has been a longtime privacy advocate and has expressed sympathy with Leon’s conclusion that a 34-year-old Supreme Court precedent allowing police to trace a suspected criminals phone calls without a warrant does not authorize bulk collection of data on virtually every phone call made to, from or within the U.S.

“Our smartphones with built-in GPS technology track our locations and our phone companies and Internet providers collect metadata on every call we make and every person we email. … Court decisions from the pre-Internet days suggest that the information we give away voluntarily to these companies can be obtained fairly easily by the government,” Podesta told the German newsmagazine Der Spiegel in July. “That legal rule may have made sense in an age before Facebook and iPhones, but we need a serious examination of whether it still makes sense today.”

Podesta has also taken on the intelligence community before, singlehandedly waging a successful battle to defeat anti-leak legislation passed near the end of President Bill Clinton’s term in office. At Podesta’s urging, Clinton vetoed the intelligence bill containing the measure and it was later stripped out.

The White House referred questions about the impact of Leon’s ruling to the Justice Department, which said it was reviewing the decision and pointed to numerous orders from other judges re-authorizing the program.

Leon’s decision did buoy critics of the metadata program in Congress, but it remains doubtful that significant reforms will pass anytime soon. The controversial issue has been jettisoned from a defense bill expected to pass this week. And with most Republicans and some powerful Democrats like Senate Intelligence Committee Chairwoman Dianne Feinstein of California strongly supportive of the program, prospects for major reforms in the Senate are murky at best.

Other events could dampen the impact of Leon’s decision. A contrary ruling in the coming days from one of the other courts considering lawsuits challenging the metadata program would buttress the administration’s argument that Leon’s ruling is an outlier.

U.S. District Court Judge William Pauley heard arguments last month on an American Civil Liberties Union suit filed in Manhattan. A decision on a motion for preliminary injunction in that case could come at any time. The other cases appear to be on slower tracks.

Leon’s opinion won’t dictate any of the future decisions, but judges usually refer to other rulings on the subject and either adopt the same reasoning or explain their reason for departing from it. Leon’s decision could also make judges with doubts about the program more willing to express those publicly.

At a minimum, the decision undercuts one of the pro-surveillance camp’s best talking points: that every judge who has considered the NSA metadata program has upheld it.

“This is great,” Richardson said of Leon’s ruling. “One of the biggest things they’ve had going for them is to say the FISA Court has always signed off on this program. … It just can’t be overstated how important it is to have outside judges actually looking at these programs.”